Stealing First: The Rehnquist Court Gags on Free Speech

The prospect that Bill Clinton could name more than

one new justice to the U.S. Supreme Court has caused celebration among those who

feared for the fate of Roe v. Wade. The same prospect has significant

implications for the first Amendment, which has also been hanging in a precarious

balance since President Reagan and Bush have shifted the Court's center of

gravity to the right. For while the nation's attention was absorbed by the

decision at the end of the Court's 1991-1992 term upholding the restrictions on

abortion enacted in Pennsylvania, the justices were at the same time deciding a

less-noticed group of cases that are likely to have profound implications for

the First Amendment. Not only did the justices tinker with some fundamental

principles governing freedom of speech and the separation of church and state,

but the surprising alliances and divisions among them foreshadow an uncertain

future for several of those principles. At stake are such important issues as:

  • the extent to which hate speech can be restricted, if at all;
  • whether criminal acts motivated by group hatred can be singled out for

    sterner punishment than parallel acts that are not so motivated;

  • what kinds of public places are available for demonstrations, leafletting,

    or solicitations of money for religious and political causes;

  • how much of a fee can be charged for holding parades and rallies;
  • the degree to which the government may become involved with religion before

    it violates the First Amendment's prohibition against an establishment of


The answers to these questions will be influenced not only by the nature of the

cases and merits of the arguments presented to the Court in coming years but by

the ideological predispositions and interpersonal dynamics of the justices.

Justice Harry Blackmun warned last year that he was 83 and could not remain

forever on a Court only one vote short of overturning Roe v. Wade. But

replacing Justice Blackmun with a Clinton appointee will only maintain the

Court's present philosophical makeup. For the Court to move toward a more

vigorous invocation of the First Amendment, not to mention stricter adherence to

Roe v. Wade, one or both of the Court's two most senior members, Justice

Byron White and Chief Justice William Rehnquist, will also have to leave, and

the other relatively senior member, Justice John Paul Stevens, would have to be

replaced by someone with more consistently liberal inclinations.

If such personnel changes do not occur, and if the younger and newer justices

remain on the Court for a considerable period of time, the risk remains that the

narrowing of First Amendment doctrine set in motion or attempted this past term

may be reinforced. That will depend in part on whether Chief Justice Rehnquist

and Justice White continue, as they have for the two decades they have served

together, to vote alike virtually all of the time and almost always uphold the

position of the government against claims by individuals that First Amendment

rights have been violated. Or will they, as they did in the St. Paul

cross-burning case, more frequently vote to strike down a government restriction

on speech?

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Will Justice Stevens maintain his record of voting for a high wall of

separation between church and state while swinging between supporting and

opposing government restraints on freedom of speech? And will Justice Blackmun

continue with the generally expansive view of the First Amendment he has taken

in recent years, or could he regress to his early days on the Court, when he

voted nearly always with his so-called "Minnesota twin," the

conservative Chief Justice Warren Burger?

Justice Clarence Thomas will most likely continue, as he has begun, to anchor

the Court's extreme right wing, dissenting even when every other justice has

recognized an individual right as against the state. He was the lone dissenter

when the eight other justices held that a white murderer's mere membership in a

racist organization (he had killed a white woman) could not be considered in

sentencing him to capital punishment. Justice Antonin Scalia may well persist in

alienating the more moderate members of the Court, with his combination of sharp

words, Jesuitical logic, and seeming need to be different, while at the same

time, and with some important exceptions, hewing to a hard majoritarian line.

Will Justices Sandra Day O'Connor and Anthony Kennedy continue to walk in the

middle of the road with respect to both freedom of speech and the separation of

church and state, straying more often to the right than to the left, sometimes

together and sometimes separately? And will Justice David Souter continue down

the promising, independent path he has begun to take in First Amendment cases,

somewhat more sure-footed regarding the Establishment Clause than with respect

to freedom of speech?

Clues to how these questions may be answered and how, as a result, important

free speech and church-state issues may be resolved can be found in the First

Amendment cases that were decided in May and June of 1992.


R.A.V. v. St. Paul, in which a so-called Bias-Motivated Crimes Ordinance

was struck down, produced the most complicated set of opinions, whose effects

will not be entirely clear until they have been tested in future cases. The

justices left no doubt that burning a cross on somebody else's lawn can properly

be punished as an act of trespass or assault, while all agreeing that the St.

Paul law against hate speech and hate symbols was unconstitutional. Beyond

that, there was no consensus and much ambiguity.

A five-person majority, with Justice Scalia as their spokesperson, argued that

the government may ban all so-called "fighting words"--a

well-established doctrine of the Court that excludes from First Amendment

protection speech having a direct tendency to provoke a fight--but it may not

select for punishment only those "fighting words" that express a point

of view of which it disapproves. This is what the majority believed the city of

St. Paul had done. The other four justices were quite willing to let a city or

state decide that within a category of expression, like fighting words, which

was already beyond the protection of the First Amendment, some speech believed

to be of greater social harm than other speech should be particularly singled

out for criminal penalties. Their reason for striking down the St. Paul

ordinance was their belief that it reached beyond fighting words to criminalize

constitutionally protected speech, namely that which "causes only hurt

feelings." Had the law been confined to the punishment of "race-based

fighting words" and threats, it would have had their approval.

The vehemence with which the concurring (only in the final judgment) opinions

of Justices White, Blackmun, and Stevens took exception to Justice Scalia's

opinion on behalf of the majority suggests that there may have been a subtext to

this dispute. Although on the surface what was at issue was an ordinance

directed only at verbal and symbolic expressions of group hatred, that law was

known as the Bias-Motivated Crimes Ordinance (italics mine), and what

the city had invoked it for in this instance was indisputably a criminal as well

as a symbolic act. (It should be noted here that the defendant was also charged

with, and found guilty of, assault --a conviction that was not appealed to the

Supreme Court.)

For those who favor more severe penalties for criminal behavior, like assault

and battery, arson, or murder that is motivated by group hatred, than for

equivalent run-of-the-mill crimes, there is a concern that if one reads between

the lines of the majority opinion, one may find the basis for striking down such

enhanced penalties. And whether the five justices who signed on to that opinion

believe it or not, there are certainly other jurists and legal scholars who have

argued that imposing greater punishment on bias-motivated crimes than on the

same crimes if not caused by group hatred is just as much a violation of the

First Amendment as St. Paul's content-based discrimination among fighting words

that the majority condemned. This claim is based on the fact that the only way

we know and can prove that a crime has been motivated by group hatred is if the

perpetrator has given verbal or symbolic expression to such feelings.

The four justices who took a different route to the conclusion that the St.

Paul law was unconstitutional may well have shared the concerns of those who see

in the majority opinion a potential basis for invalidating enhanced penalties

for hate crimes as well as for hate speech. This is strongly suggested by some

of the language of their concurring opinions, which in many ways read more like

dissents. Justice Stevens, for example, had this to say:

Conduct that creates special risks or special harms may be prohibited by

special rules. Lighting a fire near an ammunition dump or a gasoline storage

tank is especially dangerous; such behavior may be punished more severely than

burning trash in a vacant lot. Threatening someone because of her race or

religious beliefs may cause particularly severe trauma or touch off a riot...

such threats may be punished more severely than threats against someone based

on, say, his support of a particular athletic team.

Yet it is not at all certain that the majority intended to, or would be

inclined to, foreclose enhanced penalties for hate crimes. Indeed, one of the

exceptions to the majority's disapproval of content-based discriminations that

Justice Scalia said would be permissible would be a "prohibition of

fighting words that are directed at certain persons or groups (which would be

facially valid if it met the requirements of the Equal Protection

Clause)." If such discrimination would be allowed with respect to words,

it would certainly be allowed with respect to criminal acts. On the

other hand, one who favors enhanced penalties for hate crimes can legitimately

feel uneasy about the "if it met the requirements of the Equal

Protection Clause" caveat, wondering just what that means.

Another serious ambiguity left by the R.A.V. v. St. Paul opinions is

what the Court now considers to be punishable "fighting words." Prior

to this decision, most analysts assumed that the Supreme Court's original 1942

definition of "fighting words" as those which "by their very

utterance inflict injury or tend to incite an immediate breach of the peace"

had been amended by decisions in the 1970s that chopped off the first half of

the definition and limited it only to words that "have a direct tendency to

cause acts of violence by the person to whom, individually, the remark is

addressed." Many observers also assumed that the contemporary reason for

the Court's exclusion of fighting words from First Amendment protection is

because they may provoke a fight, not because they are barren of ideas.

Both of these premises have now been thrown into some doubt by contradictory

statements, not among the various R.A.V. opinions but within the very

same opinions. Justice White, for example, reiterates the current understanding

of legal scholars that expression which "by its very utterance...causes

only hurt feelings, offense, or resentment" or "anger, alarm, or

resentment" does not constitute fighting words and is protected by the

First Amendment. Indeed, that is why he and the other concurring justices found

the St. Paul ordinance to be unconstitutionally overbroad. Yet at another point

in his opinion, he objects vehemently to Justice Scalia's having characterized

fighting words as a form of "debate" and asserts that in so doing "the

majority legitimates hate speech as a form of public discussion." On the

one hand, White maintains that speech that causes hurt feelings, offense,

resentment, anger, and alarm is constitutionally protected but, on the other

hand, suggests that all hate speech is beyond the pale.

The majority opinion is no less self-contradictory. Justice Scalia, in his

apparent desire to correct Justice White's assertion that "fighting words

are not a means of exchanging views, rallying supporters, or registering a

protest," reminds us that when the Court first declared fighting words

outside the protections of the First Amendment, it was not because they were "not

part of the expression of ideas" but because they were "no essential

part of the expression of ideas....Sometimes," Justice Scalia

perceptively observes, "they are quite expressive indeed." But then in

attempting to justify their exclusion from the marketplace of ideas despite

their expressiveness, he turns around and says they are "analogous to a

noisy sound truck"--prohibitable not because of the ideas they convey but

because of a "`nonspeech' element of communication." What he means by

that is anybody's guess. He does not bother to explain it, and it is by no means

self-evident, since it is surely the ideas expressed in fighting words ("You

Fascist, racketeer, motherfucker, nigger, kike, honkie, fag," or whatever)

that produce the problem society seeks (I think short-sightedly) to address

through legal prohibitions.


Though Justices White and Scalia were at swords' points in the St. Paul case,

with Chief Justice Rehnquist siding with the latter of his two usual allies, the

three of them were back in unison, along with Justice Thomas, on all the other

First Amendment matters decided by the Court at the end of its 1991-92 term.

When they could entice Justice O'Connor or Kennedy, or both, from the middle of

the road to their side, they had a majority. Otherwise, they were a dissenting


The most radical success of these so-called conservatives was in persuading

Justice O'Connor to join them in essentially rewriting public forum law. They

were not satisfied with deciding that airport terminal buildings were too

crowded or specialized a kind of public forum to accommodate the selling of

literature by the Hare Krishna, as Justice Kennedy wanted to do in International

Society of Krishna Consciousness v. Lee. Instead, in an opinion written for

the majority by the Chief Justice, the Court held that the only public

properties that will be considered public forums and thus places where

government restrictions on speech will be subject to the strictest First

Amendment protection by the Court, are those that have as "a principal

purpose...the free exchange of ideas" and have "immemorially" and

"time out of mind" (quoting a 1939 Court opinion) "been held in

trust and used for the purposes of expressive activity." Presumably this

means only streets and parks, although, as Justice Kennedy pointed out, "It

would seem apparent that the principal purpose of streets and sidewalks, like

airports, is to facilitate transportation, not public discourse."

Justice Kennedy was also deeply troubled by the majority's reliance on

tradition as a determinant of what constitutes a public forum. As he put it so


One of the places left in our mobile society that is suitable for

discourse is a metropolitan of the few government-owned spaces

where many persons have extensive contact with other members of the public....We

have allowed flexibility in our doctrine to meet changing technologies in other

areas of constitutional interpretation...and I believe we must do the same with

the First Amendment.

As an alternative to the majority's vision, Justice Kennedy:

...would accord public forum status to other forms of property,

regardless of its ancient or contemporary origins and whether or not it fits

within a narrow historic tradition....The most important considerations...are

whether the property shares physical similarities with more traditional public

forums, whether the government has permitted or acquiesced in broad public

access to the property, and whether expressive activity would tend to interfere

in a significant way with the uses to which the government has as a factual

matter dedicated the property.

Justice Souter, in his dissenting opinion with respect to the selling of

literature, embraced Justice Kennedy's criteria for determining whether a

property should be considered a public forum. His impassioned objection to the

majority's view was that it "has no warrant in a Constitution whose values

are not to be left behind in the city streets that are no longer the focus of

community life. If that were the line of our direction, we might as well abandon

the public forum doctrine altogether."

As already indicated, Justice Kennedy was willing to go along with the

majority's conclusion that solicitations for money could be barred from an

airport terminal, even though he believed it to be a public forum, because he

thought there was a compelling interest in such a restriction that passed his

strict scrutiny test. However, in a related case, Lee v. International

Society of Krishna Consciousness, Kennedy came down on the other side,

concluding a ban against the distribution of free literature was

unconstitutional. In his view, such activity interfered with pedestrian traffic

less and did not involve the risk of the fraud and duress associated with the

monetary transactions.

Justice O'Connor turned the tables when she joined with Justice Kennedy in

switching sides, and along with Justices Blackmun, Stevens, and Souter made up a

majority to strike down this prohibition. Although she did not consider airport

terminals a traditional public forum whose restrictions are subject to the

strictest scrutiny, this did "not mean that the Government can restrict

speech in whatever way it likes....restrictions in nonpublic fora are valid only

if they are `reasonable'." And because, in this case, "the Port

Authority is operating a shopping mall as well as an airport," she felt

that, though the ban on money transactions was reasonable, the prohibition

against non-monetary solicitations was not.

Justice Souter, as we have seen, joined by Justices Blackmun and Stevens, not

only regarded the airport terminal as a public forum in which restrictions on

speech were to be judged with the strictest scrutiny but concluded that the

bans on both non-monetary and monetary solicitations failed the test.

In the other case affecting public forum law--a case

that was heard before Justice Thomas was confirmed--the Court decided 5-3 that a

Tennessee law prohibiting the solicitation of votes and the distribution of

campaign literature within 100 feet of the entrance to a polling place did not

violate the First Amendment. In Burson v. Freeman, only Justice Scalia

believed that the streets and sidewalks outside of a polling place are not a

public forum and that therefore strict scrutiny of the Tennessee law was not

required. From that premise he found it easy to conclude that the restriction at

issue was reasonable.

All four of the other justices in the majority, as well as the three

dissenters, agreed that such streets and sidewalks are a public forum and that

the speech that was banned was "classic political expression" entitled

to the strongest possible First Amendment protection. Their disagreement was

only over whether the 100-foot restriction passed muster as one that served a

compelling interest and was narrowly drawn to serve that interest. Justices

Rehnquist, White, Blackmun, and Kennedy thought that it did. Justices Stevens,

O'Connor, and Souter thought it did not, calling attention to the many states

that are able to preserve the integrity of their electoral process with

forbidden zones of 50 feet or less.

Notably, in this case, Justices Blackmun and O'Connor came down on the opposite

sides from their Hare Krishna book-selling opinions. Justice Blackmun thinks

there is a more compelling interest in keeping political campaigners 100 feet

away from a polling place than in keeping the Hare Krishna from selling their

literature in airport terminals. Justice O'Connor thinks it is more reasonable

to prohibit the latter than to ban the former.

All of this leaves public forum law in an uncertain state of affairs. Four

justices--Rehnquist, White, Scalia, and Thomas--are likely to uphold almost any

restriction on speech, beyond the streets and parks. Three justices--Souter,

Stevens, and Blackmun--will usually view such restrictions with the greatest of

suspicion. One justice--Kennedy--holds a generous view of what constitutes a

public forum but a somewhat tolerant view of the kinds of restrictions for which

the government might find a compelling interest. And one justice--O'Connor--has

a narrow view of what constitutes a public forum but a rather tough-minded

attitude as to the limitations on speech that can be imposed there, and a

willingness to apply somewhat rigorous standards even to the kinds of

restrictions that are reasonable on other kinds of public property. Thus the

rule of thumb on the use of public property for expressive activity is this: as

Justices Kennedy and/or O'Connor go, so will go the Court.


Public forum law is not the only aspect of the First Amendment that is now

essentially in the hands of Justices Kennedy and O'Connor. In two other

significant First Amendment cases decided in June of 1992 (as well as in the

Pennsylvania abortion decision), they joined with Justices Blackmun, Stevens,

and Souter to stave off the assault on major Court precedents (like Roe v.

Wade) by the Rehnquist-White-Scalia-Thomas foursome.

The first of these two cases, Forsyth County v. Nationalist Movement,

raised anew the question of how free, in a monetary sense, is freedom of speech.

Although the Court, for half a century, has allowed local governments to charge

relatively modest fees for permits to hold parades or rallies, it has been a

firmly established principle that laws requiring such permits must not be

discretionary--that is, they must not leave to those who issue the permits the

power to discriminate among applicants on the basis of the content or viewpoint

of their speech. And although the Court had never ruled definitively that the

fee had to be nominal, it was implicit in the principle of nondiscrimination

that applicants could not be charged a large sum just because their

demonstration might require a sizeable number of police to protect them from an

anticipated hostile audience.

When confronted with the Forsyth County, Georgia ordinance that allowed county

officials, at their discretion, to charge up to $1,000 a day for parades or

open-air public meetings, the U.S. Circuit Court of Appeals for the 11th Circuit

struck it down on the basis of what they assumed to be the Supreme Court

precedents governing such matters. But Chief Justice Rehnquist et al. wanted to

reverse that decision because they felt there was nothing in past precedents

that limited a local government to charging only a nominal fee and that there

was no evidence in the record of the case before them to indicate that the

ordinance had, in practice, been utilized in a discriminatory way.

Happily, Justices O'Connor and Kennedy joined with Justices Blackmun, Stevens,

and Souter to constitute a majority rejecting that view. Although avoiding the

question of whether a permit ordinance could require more than a nominal charge,

they vehemently reaffirmed the principle that its implementation could not be "left

to the whim of the administrator" and that it could not "depend on the

administrator's measure of the amount of hostility likely to be created by the

speech based on its content." Said Justice Blackmun for the majority, "Speech

cannot be financially burdened, any more than it can be punished or banned,

simply because it might offend a hostile mob."

Few expected the same five justices to form a

majority in Lee v. Weisman. Justice Souter was an unknown because this

was his first establishment-of-religion case. But most analysts expected

Justices Kennedy or O'Connor, or both, to be on the other side, based on their

earlier votes and opinions in cases involving the use of peyote in Native

American church rituals and religious displays at public buildings during the

Christmas season. Lee v. Weisman raised the specific question of whether

the delivery of religious invocations and benedictions by members of the clergy

at public middle school and high school graduation ceremonies violated the First

Amendment. The larger question, however, was whether the Court, as the fearsome

foursome wanted to do, would overturn a two-decade old precedent that for a

government practice or law to avoid violating the establishment-of-religion

clause of the First Amendment, it has to "(1) reflect a clearly secular

purpose; (2) have a primary effect that neither advances nor inhibits religion;

and (3) avoid excessive government entanglement with religion." These

principles were enunciated in a landmark 1971 decision called

Lemon v. Kurtzman, in which the Court invalidated the use of taxpayers'

money to help pay the salaries of parochial school teachers.

Justice Kennedy, in the majority opinion, politely declined the dissenters'

invitation to revisit the so-called Lemon tests--an invitation initiated

not only by the petitioner in the case but by the Bush administration's

friend-of-the-court brief. To the majority, "The government involvement

with religious activity in this case" was so "pervasive" and "the

potential for divisiveness" so apparent that by any measure, Lemon

or otherwise, it had to be prohibited. As for the contention of the petitioner

and government

amicus brief, supported by the dissenters, that there is nothing

coercive about a situation in which students have a choice of sitting in silence

during the prayer or not attending the graduation ceremony, Justice Kennedy's

reply was that "the argument lacks all persuasion. Law reaches past

formalism. And to say a teenage student has a real choice not to attend her high

school graduation is formalistic in the extreme....Everyone knows that in our

society and in our culture high school graduation is one of life's most

significant occasions. A school rule which excuses attendance is beside the


The dissenting opinion was Justice Scalia at his nastiest. He characterizes the

majority's view that there is psychological pressure on teenagers to attend

their graduations and subtle coercion in having to sit or stand through a prayer

that is not theirs as a "psycho-journey" with "psychology

practiced by amateurs." The Kennedy opinion, says Scalia, "lays waste

a tradition that is as old as public-school graduation ceremonies

themselves....As its instrument of destruction, the bulldozer of its social

engineering, the Court invents a boundless, and boundlessly manipulable, test of

psychological coercion." Continuing on his tradition hang-up, Justice

Scalia maintains that "the history and tradition of our Nation are replete

with public ceremonies featuring prayers of thanksgiving and petition....George

Washington deliberately made a prayer a part of his first official act as

President....Thomas Jefferson...prayed in his first inaugural

address....Similarly, James Madison....Most recently, President Bush...made a

prayer his first official act as President." Perhaps, snarls Justice

Scalia, "the next project for the Court's bulldozer" will be the

Pledge of Allegiance.

This was too much for Justice Souter. Perhaps he felt that history, too, should

not be practiced by amateurs. In a separate opinion concurring with the majority

(though he signed on to the Kennedy opinion as well), joined by Justice Stevens

and, significantly, Justice O'Connor, Justice Souter reviews with scholarly

precision the history of the Establishment Clause and the separationist beliefs

and practices of the Founding Fathers. Directly countering Justice Scalia's

examples, he notes that "President Jefferson...steadfastly refused to issue

Thanksgiving proclamations of any kind, in part because he thought they violated

the Religion clauses," and that "during his first three years in

office, James Madison also refused to call for days of thanksgiving and prayer."

It may be that Justice O'Connor joined Justice Souter's opinion not only

because it struck back so artfully at Justice Scalia, whose sharp words have so

often been directed at her but also because it parted company somewhat from

Justice Kennedy (who did not join the opinion). She has had a difference in the

past with Justice Kennedy, not yet been resolved by a Court majority, on whether

there must be a religiously coercive element in a government practice for it to

violate the Establishment Clause. Justice Kennedy has said he thinks there must

be, but he did not press the point in Weisman because he felt that

coercion was obviously present. Justice Souter, in contrast, now makes clear

that he, like Justice O'Connor (and Justice Stevens), believes coercion need not

be present for there to be a violation of the separation of church and state;

that it is enough if the government has appeared to

endorse religion.

Why Justice Blackmun did not also join the Souter opinion and why Justice

Souter did not join Justice Blackmun's separate concurring opinion is not at all

clear, since Justice Blackmun also agrees that coercion is not necessary and

endorsement is sufficient to violate the First Amendment, and since Justices

Stevens and O'Connor joined with both. Although there is nothing incompatible

between the two opinions, one significant element in Justice Souter's is absent

from Justice Blackmun's, and that may be the explanation. Referring to a 1947

Court precedent, Justice Souter says "the Establishment Clause forbids not

only state practices that `aid one religion...or prefer one religion over

another,' but also those that `aid all religions'....the Establishment Clause

forbids state-sponsored prayers in public school settings no matter how

nondenominational the prayers may be." Although it is hard to believe that

Justice Blackmun, or anyone else who understands the reasons for maintaining a

separation of church and state, would find that principle objectionable, it

seems to be the only real difference between the two opinions.

Whatever the case may be, there are still only four firm votes (Justice Kennedy

excluded) for the position that a coercive element need not be present for a

religious activity sponsored or supported by the state to be violative of the

First Amendment. At best, then, this is a modest victory for the separation of

church and state. If greater victories are to be won on this, or any of the

other First Amendment issues we have explored here, it may depend on how much

the hard line of Justice Thomas and the sharp words of Justice Scalia offend the

moderate temperaments of Justices O'Connor and Kennedy and drive them to the

opposing side.


All of this can, of course, change dramatically if the former professor of

constitutional law, Bill Clinton, has the opportunity to name replacements not

only for Justice Blackmun but for one or more of the other justices. Before the

election, Clinton said that a primary criterion for such selections will be a

commitment to the Bill of Rights, and he specifically mentioned freedom of

speech and separation of church and state.

Assuming that Clinton gets that chance, what might proponents of freedom of

speech hope for from such a Court? At the very least, the "fighting words"

exception should once again be unequivocally limited to speech that provokes

violence from the individual to whom it is personally addressed. Far better

would be to abandon the exception altogether and punish only those who swing the

first fist and not those who hurl the last epithet. But even under the former

and less radical alternative, which the Supreme Court for more than twenty years

has felt to represent an adequate balance between freedom of speech and social

order, most of the hate speech incidents that occur, whether on or off the

college campuses, would be protected by the First Amendment, as they should be.

That is so because most of the time those hateful messages are addressed to the

world at large, through posters, the display of symbols, or utterances to third

parties, rather than by words directed to the target in face-to-face

confrontations where the victim is either likely to respond, or capable of

responding, by starting a fight.

Enhancing a penalty for criminal behavior because it was motivated by group

hatred poses difficult questions about which strong supporters of freedom of

speech can and do differ. Some view it as a serious intrusion on the First

Amendment to punish such conduct more severely than a comparable

run-of-the-mill crime because the evidence that a hate crime has been committed

is necessarily derived from the perpetrator's beliefs and verbal expression of

those beliefs. Others argue that hate crimes pose a greater danger to society

than similar offenses that are not so motivated; heavier penalties are therefore

justified despite, or even because of, the ideological underpinnings of the

behavior. Thus a Supreme Court ruling one way or the other would not

necessarily be viewed as a fundamental First Amendment error.

The Court should expand, rather than contract, the kinds of public properties,

paid for with my money and that of other taxpayers, that are regarded as public

forums for speech. Justice Kennedy had it right when he said that the primary

question should be "whether expressive activity would tend to interfere in

a significant way with the uses to which the government has dedicated the

property." Justice Thurgood Marshall said essentially the same thing two

decades ago in a case involving the picketing of a school, Grayned v.

Rockford, when he wrote, for a majority of the Court, "The crucial

question is whether the manner of expression is basically compatible with the

normal activity of a particular place at a particular time." Unfortunately,

the Court has since made it more complicated than that, and Kennedy, having

started from such a desirable premise, was so willing to believe it to be

violated by a handful of Hare Krishna selling their literature in a vast airport


Justice Blackmun too had it right when he struck down Forsyth County's permit

fee ordinance, saying that speech should not be "financially

burdened...simply because it might offend a hostile mob." It is too bad

that he and his colleagues in the majority chose not to accept the challenge of

the dissenters to rule also on the question of whether fees for permits to

engage in expressive activity must be kept at a nominal level. The dissenters

insisted that they need not be, and perhaps the majority ducked that question

because there were insufficient votes for declaring otherwise. It may be that a

Clinton-altered Court will have the fortitude to do so.

Finally, is it too greedy to wish for a day when the establishment-of-religion

clause of the First Amendment will be more like the "wall of separation

between church and state" that Thomas Jefferson envisioned and less like

the wall that former Chief Justice Burger has dismissed as a mere "metaphor"?

I lose no sleep over coins that say "In God We Trust" or members of

the clergy giving their blessings to presidential inaugurations; I realize

political pragmatism dictates that these traditions continue. But I take much

more seriously Christmas nativity scenes on the property of public buildings

(even if surrounded by a secular Santa Claus and reindeer), crosses on city or

state-owned mountaintops or on the shoulder patches of police uniforms, and

government vouchers that would pay tuition to attend parochial schools. If

Justices O'Connor's and Souter's "endorsement test" proves

insufficiently tough to flunk those practices, I would hope for new justices

with the mortar to fill such chinks in Mr. Jefferson's wall.

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(If there's one thing we know about comment trolls, it's that they're lazy)